We have reported here on the 30 March 2021 amendment to the law on environmental impact assessments from the perspective of investors and ecological organisations. In practical application, these provisions are generating more and more doubts.
The amendment vested the administrative courts in Poland with the power to stay the execution of final decisions on environmental conditions for development projects. Before that, under the general provisions of the Administrative Court Procedure Law, the courts could apply such interim measures in proceedings initiated by filing of a complaint against an administrative decision, but in practice they were not applied to decisions on environmental conditions. This was because it was held by the courts that such a decision did not in itself entitle the investor to carry out a project, and thus staying execution of such a decision was not permissible.
Under Art. 86f(1) of the amended Act on Access to Information on the Environment and Environmental Protection, Public Participation in Environmental Protection and Environmental Impact Assessments of 3 October 2008, the provisions of the Administrative Court Procedure Law apply to complaints against decisions on environmental conditions for development projects. This means that in the event of a complaint against such a decision, the administrative court may issue an order staying enforcement of the decision if there is a danger of significant harm or consequences that would be hard to reverse.
The amendment clarified that effects that would be difficult to reverse should be understood to mean effects flowing from taking up execution of a project that could significantly impact the environment, for which the challenged decision was issued. It should be stressed that the law deems “effects that would be difficult to reverse” to mean any and all effects flowing from execution of the project, which makes it much easier to demonstrate fulfilment of the grounds for staying execution of the decision. The complainant does not have to convince the court that specific effects flowing from execution of the project would be difficult to reverse.
The law specifies the periods within which the courts should consider an application to stay of execution of a decision and rule on the complaint:
- The administrative court should consider an application to stay execution of a decision on environmental conditions promptly, but no later than 30 days after the application is filed with the court.
- If an order staying execution of a decision on environmental conditions has been issued, the province administrative court should rule on the underlying complaint within three months after issuance of the stay.
- If an interlocutory appeal is filed against the order on stay of execution of the decision on environmental conditions, the Supreme Administrative Court should rule on the interlocutory appeal within two months from filing.
The new legal solutions provide that the administrative body issuing the decision on environmental conditions is required to notify bodies issuing decisions following on from that decision (i.e. project permits) that an order staying execution of the decision has been issued. Within seven days after obtaining that information, those administrative bodies are required, at their own initiative, to suspend the proceedings for issuance of permits for the project.
This notification applies to circumstances resulting in the need to suspend the proceedings, as well as the cessation of grounds justifying suspension of the proceedings. This is an entirely reasonable rule, because the body considering an application for a permit for a project is not a party to the administrative court proceeding concerning the decision on environmental conditions. When the grounds justifying suspension of the proceedings cease to exist, the public administrative body is required to resume the suspended proceeding at its own initiative or at the request of a party.
To the satisfaction of ecological organisations, the stay of execution is quite durable, as it remains in force until the ruling denying the underlying complaint becomes legally final. The investor will be able to continue to seek permits for the project when the Supreme Administrative Court upholds the investor’s interlocutory appeal against the order staying execution of the decision, or when the complaint against the decision on environmental decisions is denied with legal finality. Thus if the province administrative court denies the complaint against the decision on environmental conditions, but the complainant files a cassation appeal with the Supreme Administrative Court, the stay of execution will remain in force until a judgment is issued by the Supreme Administrative Court.
Stay of environmental decision and project permits
For the investor, obtaining an environmental decision is just one in a series of steps towards implementation of the project. Thus from a practical point of view, the most important issue is the impact of the stay of execution of the environmental decision on the proceedings to obtain a permit for the project.
Lawmakers considered only the fact pattern in which the proceeding to obtain a permit for the project has been initiated but not yet completed at the time when the court stays execution of the environmental decision. Then that proceeding will also be suspended.
However, lawmakers did not address the situation where the court issues an order staying execution of the environmental decision but the investor has already obtained a permit for the project. It should be considered whether in that case a stay is possible at all—or rather what effects are exerted by the stay.
On one hand, it could be argued that because the amended provisions address only the aspect of suspension of proceedings for issuance of further project permits, and the decision on environmental conditions does not in itself entitle the investor to carry out the project, the effects of the stay are limited to this suspension of proceedings.
On the other hand, considering the aim of the amendment and that lawmakers intended to prevent completion of the procedure for issuance of project permits prior to resolution of a complaint against the environmental decision, it could be argued that the parliament wanted the stay of execution of the decision to be interpreted broadly. Under this view, it would not be rational to have a situation where stay of the environmental decision would exert no consequences merely because the investor managed to obtain a project permit before the administrative court could rule on the application for a stay.
Thus two divergent interpretations are possible. It could be accepted that despite stay of execution of the environmental decision, the investor may proceed to carry out the project because it holds a legally final project permit issued before the environmental decision was stayed. But this immediately raises another question: In this case, does stay of execution of the decision mean that the investor does not have to pay attention to the terms of the environmental decision when carrying out the project?
It should be borne in mind that the decision on environmental conditions specifies not only the requirements that must be considered when issuing further project permits, but also indicates the conditions for exploitation of the environment during the phase of implementation and operation of the project, and imposes obligations related to avoiding, mitigating and monitoring impacts, and sometimes even imposes a duty to present a post-implementation analysis.
Acknowledging that the investor can proceed to carry out the project but need not perform the obligations set forth in the environmental decision would be hard to reconcile with the precautionary principle, other core systemic values of environmental law, and the essence of the institution of stay of execution of an administrative act. The aim of this institution after all is to protect the party against negative consequences flowing from execution of the challenged decision. Execution of the decision is stayed due to the consequences that would flow from carrying out the project. It would be hard to accept that the court would stay execution of a decision on environmental conditions in order to prevent a post-implementation analysis from being conducted, or to prevent the performance of measures intended to avoid or mitigate impacts on the environment.
An entirely different interpretation could also be adopted, under which, following stay of execution of the environmental decision, the project cannot be carried out by the investor despite holding a permit for the project. There are certain systemic arguments in favour of this line of interpretation. Stay of execution of the decision does not eliminate the decision from circulation, and in particular does not mean that the conditions specified in the decision can be ignored. However, the stay means that until the underlying complaint is decided by the court, these conditions cannot be executed and remain in a state of suspension. This would require investors to refrain from actions that could prevent implementation of the conditions specified in the decision.
So there are lots of doubts, but also many ideas for resolving them. The correct solution will probably be determined by the administrative courts in the near future.
Dr Adrianna Ogonowska, Dr Dominik Wałkowski, adwokat, Environment practice, Wardyński & Partners